Considered and decided by
Lansing, Presiding Judge, Amundson, Judge, and Lindberg, Judge.*

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

In this
first-degree controlled-substance offense case, the district court denied
appellant’s motion to suppress cocaine seized from his person. Appellant waived his right to a jury trial
and stipulated to the facts for purposes of a court trial. The court found appellant guilty and
sentenced him to 110 months. We affirm.

FACTS

On
February 25, 2000, Officer Diana Olsem of the St. Paul Police Department was
patrolling University Avenue in her squad car with a new recruit she was
training. About 9 p.m., the officers
stopped at Arnella’s Bar (Arnella’s), in whose parking lot three serious altercations
had occurred the night before. Olsem
testified that Arnella’s was an area of “high drug activity,” where frequent
altercations and even a few homicides had occurred. She further testified that she had purposely stopped several
times at Arnella’s that day to establish a “police presence,” hoping to prevent
“retribution fights” carrying over from the night before.

When
Olsem and the recruit entered Arnella’s parking lot, they saw a car parked with
the engine running and two passengers seated inside. Olsem walked up to the front passenger window, motioned for the
occupant to roll down the window, and asked her what she was doing. The passenger replied that they were waiting
for the driver who had gone into the bar.
The passenger, who appeared to be under 21, did not have any identification
but gave her name as Tiffany Perkins.

According
to Olsem, as she spoke with Perkins she shined her flashlight into the vehicle
to check for weapons. She saw what
appeared to be marijuana and marijuana seeds laying on the floor by Perkins’s
feet. Olsem asked Perkins to step out
of the car and, as she opened the door, Olsem smelled the fresh odor of
marijuana. She then pat-searched
Perkins.

During
the pat-search, Olsem observed a male come around the corner of the bar and
approach the car. Upon seeing the
police car, the individual stopped and fled.
Olsem quickly put Perkins in the back seat of the squad car and pursued
the male, whom she suspected was the driver of the idling car. But she lost sight of him. Olsem testified that in her experience,
drivers frequently left their cars idling in Arnella’s parking lot while they
went into the bar to buy drugs. She
testified that she was concerned that either the passengers or the suspected
driver might be armed.

After
giving up the pursuit of the fleeing suspect, Olsem returned to the idling car
and spoke with the male passenger in the back seat, who identified himself as
Quentin Moore. Olsem asked Moore to
step out of the vehicle and asked him if he had anything illegal. As Moore stepped out of the car, Olsem,
according to her testimony, could smell the odor of marijuana emanating from
him. When asked for identification,
Moore produced a card from California.
Olsem then proceeded to pat-search Moore and felt a “wad” in Moore’s
left pocket. Moore told her the bulge
in his pocket was money, and said the driver of the car was in the bar.

Olsem
placed Moore in the back seat of the squad car along with Perkins. She and the recruit then thoroughly searched
the idling vehicle. They did not find anything
in the car, other than the marijuana seeds and marijuana residue that Olsem had
earlier identified.

According
to Olsem’s subsequent testimony, after returning to the squad car, she
remembered receiving a memo about suspects, particularly those from “Asian
gangs,” possessing tiny handguns hidden in their shoes. She remembered that Moore had said he did
not feel afraid walking around with the wad of money in his pocket. Olsem then asked Moore to take his right
shoe off. She looked in the shoe and saw
no weapon. When she returned the shoe,
Moore, according to Olsem, asked whether she wasn’t going to check the other
one. When she did so, she noticed the
left shoe had a hump in the sole. She
lifted up the sole and saw two baggies containing crack cocaine. She immediately arrested and handcuffed
Moore. When she looked in the right
shoe again, she found $1,870 hidden beneath the sole.

Moore
testified at the omnibus hearing that he was not smoking marijuana in the car
on February 25, and that he did not see Officer Olsem shine a flashlight into
the vehicle. He testified that, after
the first pat search, Olsem told him to take his shoes off. Moore denied volunteering to allow a search
of the other shoe.

The
district court denied a motion to suppress based on an unreasonable search and
seizure. In so doing, the court
dismissed Moore’s testimony at the omnibus hearing as lacking in credibility
and concluded that the police “actions were lawful in all respects,” but did
not specify under which theory the search was reasonable. Moore then entered into a Lothenbach
stipulation, waiving a jury trial and stipulating to the facts, in order to
expedite appellate review. The district
court found Moore guilty of first-degree possession of cocaine with intent to
sell. This appeal followed.

D E C I S I O N

In reviewing pretrial orders on
motions to suppress, we independently review the facts and determine as a
matter of law whether the evidence should be suppressed.See State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). Where the facts are in dispute, a clearly
erroneous standard is applied to the district court’s findings of fact. In re Welfare of G.M., 560 N.W.2d 687,
690 (Minn. 1997).

Appellant argues that the search
violated his right to be protected from unreasonable searches and seizures
under both the United States and Minnesota constitutions. The state argues that the search was
permissible as an exception to warrantless searches under Terry v. Ohio[1]
and as a search incident to arrest.

Here, the stop, which did not
occur until after Perkins voluntarily spoke with Olsem, was unquestionably
legal. Olsem saw marijuana seeds and
residue in the car in plain view. When
Perkins complied with Olsem’s request to exit the car, Olsem also smelled the
odor of marijuana. At that point,
Officer Olsem had probable cause to search the car. See State v. Schinzing, 342 N.W.2d 105, 109 (Minn. 1983) (detecting
odor of alcohol coming from car gave officer probable cause to believe that a
search of car’s passenger compartment would yield open alcohol containers); State v. Pierce, 347 N.W.2d 829, 833
(Minn. App. 1984) (“It has long been held that the detection of odors alone,
which trained police officers can identify as being illicit, constitutes
probable cause to search automobiles for further evidence of crime.”)
(citations omitted).

Moore argues that the authority
to search him was not derived from probable cause to search the vehicle in
which he was a passenger. Even if a
vehicle may properly be searched, a person may not be searched along with the
car’s contents. See United States v. Di Re, 332 U.S. 581, 587, 68 S. Ct. 222, 225
(1948) (“We are not convinced that a person, by mere presence in a suspected
car, loses immunities from search of his person to which he would otherwise be
entitled.”); State v. Bigelow, 451
N.W.2d 311, 312-13 (Minn. 1990) (stating that the search of a vehicle’s
containers is different from the search of a person who is merely present in
the car).

Although Olsem was not entitled to search Moore incident to her
search of the car, she did have probable cause to arrest him. Probable cause to arrest requires police to
reasonably believe that a certain person has committed a crime. In re
Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1995). The probable-cause-to-arrest test requires
the court to objectively consider the facts and the circumstances to decide if
a “person of ordinary care and prudence would entertain an honest and strong
suspicion that a crime has been committed.”
Id. (citation omitted).

Here, the search of the car did
not turn up any additional contraband.
However, when Moore complied with her request that he step out of the
vehicle, Officer Olsem noticed the smell of marijuana emanating from Moore. That fact, combined with the fact that
Officer Olsem saw marijuana seeds and residue in the vehicle, constituted
probable cause for Moore’s arrest and a search incident to that arrest. See
State v. Hodgman, 257 N.W.2d 313, 314-15 (Minn. 1977) (holding officer who
smelled burned marijuana, saw pill bottle and four youths in car, one of whom
appeared to be in a stupor, had probable cause to arrest and to search incident
to arrest); State v. Wicklund, 295
Minn. 403, 205 N.W.2d 509, 511 (1973) (holding that officers, following lawful
stop, and smelling odor of marijuana and observing an occupant’s furtive
movements, had probable cause to search occupant).

At the omnibus hearing, defense
counsel raised the argument that possession of a small amount of marijuana is a
petty misdemeanor that does not warrant a custodial arrest. The amount of marijuana found during the
investigation was a “small amount,” seeMinn. Stat. § 152.01, subd. 16
(2000), and its possession constituted a petty misdemeanor. Minn. Stat. § 152.027, subd. 4 (2000). But this conclusion does not end the
inquiry. The rules of criminal
procedure clearly allow a custodial arrest for any offense if there is a
“substantial likelihood” the accused would not respond to a citation.

[l]aw enforcement officers acting
without a warrant * * * shall issue citations to persons subject to lawful
arrest for misdemeanors, unless it reasonably appears to the officer that * * *
there is a substantial likelihood that the accused will fail to respond to a
citation.

Minn. R. Crim. P. 6.01, subd. 1(a)(1). Moore appeared to be California a resident;
he presented a California identification card.
After running a warrant search with the passengers’ identifications, Olsem
learned that Perkins, his co-passenger, was reported missing from California as
a juvenile. These circumstances
presented a substantial likelihood that a citation would not be sufficient to
compel Moore’s presence to answer the marijuana charge. See
Carradine v. State, 494 N.W.2d 77, 83 (Minn. App. 1992) (holding that
nonresident status of both occupants of car, along with accused’s California
drivers license and fact he was headed for airport, along with other facts,
created substantial likelihood he would not respond to citation), aff’d in part, rev’d in part and remanded
511 N.W.2d 733 (Minn. 1994) (not addressing search or arrest issue).

The district court did not err in
denying the motion to suppress the evidence obtained as a result of the valid
search incident to arrest. Because the
search constituted a lawful search incident to arrest, it is unnecessary to
determine whether the search was valid under Terry v. Ohio.

Affirmed.

*
Retired judge of the district court, serving as judge of the Minnesota Court
of Appeals by appointment pursuant to
Minn. Const. art. VI, § 10.